As has been widely reported, there has been an influx of false marking cases hitting the courts over the past year based on 34 U.S.C. Section 292, the False Marking Statute. That statute, loosely translated, makes it an offense to mark a product or use in advertising a patent number or the words "patent," "patent pending," or any other indication that a patent applies to a product when it in fact does not. This includes situations in which a company for years correctly marked a product with a patent number, but then continued so marking the product after the expiration of the patent. The statute states that a person responsible for such an offense shall be fined not more than $500 for every such offense.
The statutory language also includes a somewhat uniquely simplistic qui tam provision providing that "Any person may sue for the penalty, in which event one-half shall go to the person suing and the other to the use of the United States." While the qui tam provision of the False Marking Statute was enacted in 1952, the 2009 Forest Group , Inc. v. Bon Tool Company decision made the qui tam actions more financially lucrative—and set the groundwork for a cottage industry of false marking litigation—by holding that violators of the False Marking Statute face a $500 fine for each article improperly marked rather than a $500 fine for a single decision to improperly mark multiple articles.